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In a 2-1 decision, the appeals court panel wrote that the case raises "novel questions about the scope of the government's authority to force the manufacturer of a product to go beyond making purely factual and accurate commercial disclosures and undermine its own economic interest in this case, by making 'every single pack of cigarettes in the country (a) mini billboard' for the government's anti-smoking message." The court also wrote that the FDA "has not provided a shred of evidence" showing that the warnings will "directly advance" its interest in reducing the number of Americans who smoke

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[60] In a series of public advertisements along with the lawsuit, American Humane responded to Barker's claims that his allegations were made based on insufficient and misleading information